RE MOZAMMEL

CACV 58/2019

[2019] HKCA 614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 58 OF 2019

(ON APPEAL FROM HCAL NO. 698 OF 2018)

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) on 30 January 2019, refusing to grant the applicant leave for judicial review.

Background

2.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 206.  We shall not repeat the same here.

3.  Briefly stated, the applicant is a national of Bangladesh. He came to Hong Kong on 15 September 2006 and was allowed to stay until 29 September 2006.  He did not depart and overstayed since 30 September 2006.  He was arrested by the police on 23 January 2007 and was referred to the Immigration Department for investigation.  On 13 February 2009, he lodged his non-refoulement claim.  His claim was based on his fear that he would be harmed or even killed by his business rival Jamal whose brother was associated with the current ruling party, Awami League (“AL”), and also from the gangsters who acted under the instruction of Jamal.

4.  By a Notice of Decision dated 18 July 2014, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 3 risk, torture risk, and persecution risk.  By a Notice of Further Decision dated 24 March 2017, the Director decided against him on his claim of BOR 2 risk.

5.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the decisions of the Director.  After the hearing on 15 May 2017, the Board dismissed the appeal on 12 April 2018.   The Board found that the applicant had failed to establish that he had ever received any direct or genuine threat from Jamal or that he was inflicted any harm by the Bangladesh authorities.  Further, the applicant did not raise his non-refoulement protection claim until 2.5 years after his arrival in Hong Kong when he was arrested by the police which showed that he was not a genuine asylum seeker.  The Board also found that in any event, internal relocation was a viable option.  For the aforesaid reasons, the applicant’s appeal was dismissed on all applicable grounds.

6.  On 23 April 2018, the applicant filed his Form 86 together with his supporting affirmation for leave to apply for judicial review against the Director’s and the Board’s decisions.  Since the decisions of the Director were superseded by the Board’s decision, the Judge only dealt with the grounds of appeal against the Board as follows: -

(i)   Misdirection in law;

(ii)   Failing to consider the concept of extended state acquiescence;

(iii)   Failing to take into account of the applicant’s psychological strain; and

(iv)   Rendering unreasonable decision.

The Judge’s decision

7.  On 30 January 2019, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [26] – [31] for his refusal to grant leave:

“Discussion

26. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

27. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’ (Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45). Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” (CACV 219/2018 [2018] HKCA 570, para 14(1)).

28. The Applicant complained the Adjudicator misdirected himself in law; failed to consider the concept of extended state acquiescence; failed to take into account his psychological strain and rendered unreasonable decision.

29. The Adjudicator in fact did not believe the Applicant was in genuine need of non-refoulement protection. The Applicant only raised his claim in February 2009 despite he arrived in September 2006 and was arrested almost four months later in January 2007 for overstaying from 30 September 2006. The delay could not be explained by excuses of ignorance or fear. It was reasonable for the Adjudicator to find the Applicant was not in genuine fear of risk. In light of such finding, reasonable state protection (including any form of state acquiescence) and internal relocation were no real issues. Nevertheless, the Adjudicator found there was no evidence of state consent or acquiescence. He also found internal relocation was available to the Applicant in any event. The Adjudicator’s finding was not Wednesbury unreasonable.

30. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts of the case. He considered the Applicant's claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.

Conclusion

31.  The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.”

The Appeal

8.  The applicant filed the Notice of Appeal on 4 February 2019 and provided the following grounds of appeal:

(1)   The Judge had wrongly exercised his decision in coming to the conclusion that the Board had not erred in his decision; and

(2)   The Judge failed to appreciate that there was a lack of language assistance at the appeal hearing before the Board and had wrongly dismissed his application for leave to apply for judicial review against the Board’s decision which was procedurally unfair to him.

9.  Pursuant to the direction of Master Au Yeung dated 25 February 2019, the applicant filed his written submissions on 29 April 2019 in which he reiterated the background of his case, the Board’s decision and the grounds of appeal put forward before the Judge. He further complained against the Board for, rejecting his evidence without reason; adopting a flaw and unfair approach in credibility assessment and failing to consider the Country of Origin Information in relation to the condition of Bangladesh.

10.  At the hearing of the appeal on 28 May 2019, the applicant did not make further submission.

Discussion

11.  The complaints in ground 1 were vague and lack of substance.  The Judge had set out the Board’s decision and its reasons for dismissing the applicant’s claim at [29] of the CALL-1 Form and his own analysis of the Board’s findings at [30] of the CALL-1 Form. We have read the materials available before us and are of the view that the findings of the Board were well based and justified.  We do not see any errors of law or procedural unfairness/irregularities in the proceedings before the Board.  We agree with the Judge’s findings and find nothing amiss from his decision.  Ground 1 is devoid of merit and doomed to fail.

12.  Ground 2 is a new argument.  This Court will not generally entertain new arguments which are fact-and-evidence sensitive, have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Nupur Mst [2018] HKCA 524, CAMP 54/2018 at [14].  Further, it is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].  Ground 2 is plainly not arguable.

13.  We have considered the written submissions of the applicant and it added nothing substantial to further his complaints against the Judge’s decision for the purpose of the present appeal.

14.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.